Do Non-Americans Have Human Rights?

A lawyer fights to represent detainees at Guantanamo and Bagram.

One of the first casualties of the “war on terror” was human rights—at prisons and detention centers like the one at Guantanamo Bay. Clive Stafford Smith, who has represented some 300 prisoners on death row in the southern U.S. states, has now turned his attention to the prisoners there who are currently being denied basic legal and human rights. Stafford Smith has obtained permission to represent some 90 Guantanamo prisoners. Recently, he has also started putting together cases on behalf of those detained in Bagram Air Base, the U.S. facility in Afghanistan. (At Bagram, writes Emily Bazelon in the March/April issue of Mother Jones, many of the torture methods seen in Abu Ghraib were pioneered.) Supported by a Soros Justice Fellowship, Stafford Smith has set out on an unusual and challenging legal path to defend his clients.

First, though, Stafford Smith has to find out who his clients are. Because the U.S. government refuses to reveal the identities of the detainees held in Guantanamo and bases in Afghanistan, he has had to follow tips and travel throughout the Middle East to meet with families of detainees. In this interview he tells MotherJones.com how he has had to fight every step of the way to provide basic legal rights to prisoners of the “war on terror.”

MotherJones.com: Why did you choose to represent Guantanamo detainees?

Clive Stafford Smith: Anyone who has a law degree should look around them to see who the people are who are most hated in the world and then go try to help them. Otherwise, I just don’t see the point to having a law degree. Death row has always represented the distillation of our hatred—we despised people enough that we wanted to go and kill them. I never thought I would say this, but now there’s a group of people that we hate even more. And these are people who we say, without proof or opportunity for contradiction, are terrible terrorists.

MJ.com: Are there any differences between the Bagram and Guantanamo cases?

CSS: It’s a lot more difficult to work on the Afghanistan cases. I don’t speak Arabic or Pashtun, and going down to Afghanistan and finding people who would want to trust an American is extraordinarily difficult. In terms of the legal theory, they’re the same issues: whether non-Americans have human rights.

MJ.com: Are you drawing on any legal precedents?

CSS: I would turn the question around. Are there any possible legal precedents that the Bush Administration can point to that says that if you don’t have an American passport, you’re not a human being? The concept that iguanas in Guantanamo Bay have rights because the environmental laws apply there, but human beings don’t is just unfathomable to me. How our government can be making that argument is absolutely incredible. Now, in terms of a legal precedent, there is Rasul vs. Bush which says that if America controls the territory, than they’ve got to provide some rights.

MJ.com: The D.C. Circuit Court has issued two contradicting rulings on the interpretation of the Supreme Court cases regarding whether or not detainees have the right to appeal their detainment under “enemy combatant” status. It is currently facing an appeal. Do you have any insight as to what the outcome of this will be?

CSS: Well, there’s no doubt that in the long run that we’ll prevail. Every time an administration does something really stupid like, for example, interning all the Japanese in World War II, or saying that everyone’s a communist in the McCarthy scare, inevitably in the long run, we all recognize what a terrible mistake it was. In the meantime, you have to think there are 540 people who are being held without any rights in Guantanamo, and you have to think even more of their totally innocent families are spread all over the world.

MJ.com: The U.S. government has refused to disclose the names of the detainees. How to you go about tracking down your clients? How do you confirm that someone is in Guantanamo or Bagram?

CSS: The first question one should ask is why on earth we have to do this. Why is it that the government is unwilling to tell us what the names are and insist on keeping this all secret? One of the strategies I have now is, when I go down to Guantanamo, I just get my clients to tell me who is there. It’s a lot easier than traipsing around the Middle East. The government may not like that, but that’s their problem. The other side of this is Bagram. If you’ve got a secret prison on another continent, 4,000 miles away from London and 7,000 miles away from New York, where the U.S. government won’t tell us who is in there, and then they say that we have to get not only their names but permission to represent them, the world has gone insane. It’s a very difficult prospect. But we’ll get it done, sooner or later.

MJ.com: How many Guantanamo detainees are you representing?

CSS: I’ve gotten permission from about 80 or 90. But, what I am trying to do is file the lawsuits and then get some other law firm to take the case on. At the moment I’m only directly representing 8 and I am about to represent another 30. But you can’t possibly do a competent job on that number. I plan, along with CCR, to get individual lawyers to represent each of them and then I’ll keep on doing a certain number.

MJ.com: How many times have you been able to visit Guantanamo to meet with your clients?

CSS: I’ve been there twice. I spent 4 days each time with my clients.

MJ.com: What was that like?

CSS: It’s so typical of everything like this. If you go to death row, for example, the most horrific institutions are actually run by perfectly pleasant human beings. They treated me very nicely. It’s generally true. I had a nice time. When you compare it to London in mid-winter, a Caribbean island is quite nice. [Laughs.]

You go there to stay and the little cottage you stay in is called “The Pearl of the Antilles.” And right under the sign it has their little motto which is “Honor-bound to defend freedom.” As you go around the base, the soldiers all salute each other and one says “Honor-bound” and the other says “to defend freedom.” And you have a terribly hard time not laughing.

MJ.com: Was Guantanamo what you expected?

CSS: What surprised me about Guantanamo is they’re in this bizarre interrogation mentality. They keep a bunch of the prisoners hermetically sealed in one room that is split down the middle and half of it is the cell and the other half is the interrogation chamber. And that’s the same place that we as lawyers go visit the prisoner. That had quite an impact on me. I think it’s fair to say that the treatment of the prisoners at Guantanamo Bay, for all the pious words of the administration, is way worse than any death row that I’ve been to, and I’ve been to a lot of them.

Just in terms of the solitary confinement, the fact that they’re held in these cells with cameras on them 24 hours a day. They have all these Orwellian things too. They have this little “show cell” that they display for the media and they show the so-called “comfort items.” Really, these military people have a problem with euphemisms. One of the “comfort items” is a game of checkers. And I was asking, “Well, who does the prisoner have to play with? He’s in solitary confinement. He can’t play with you, can he?” The poor military officer laughed and said the prisoner had to play with himself. It was just ridiculous.

MJ.com: Do you believe the abuse of the prisoners is systematic?

CSS: I think anyone, in the wake of Abu Ghraib, is just profoundly naïve if they don’t believe that all of these abuses are systematic.

MJ.com: The military reports—Fay-Jones, Taguba—seem to imply that the abuses were the result of lax oversight. Do you believe that’s true?

CSS: I’m absolutely convinced that the people responsible are a bunch of armchair warriors who sit around and this is what they say: “Imagine that we’ve captured the guy who set a ticking time bomb in the middle of Manhattan and he’s laughing at us and he’s demanding a lawyer. Are we going to be lynched by our own liberties, or are we going to respond with a little third-degree torture to get him to tell us where the bomb is?” They really believe that.

The problem is that they are profoundly wrong on many different levels. First, there is no ticking time bomb. There is no case in the history of humankind where we’ve had, in custody, the guy who knew where the ticking bomb was. Second, if you look at torture, it gives you information that is totally unreliable and inevitably unverifiable. Torture has a circular logic—the torturer begins by torturing you to get information that he’s sure you know that you actually don’t. So, when you tell him you do, because you’re being tortured, then he thinks he’s happy because he thought it was true all along.

When they tell the lower down people—”you need to apply a little pressure,” inevitably, that results in applying a lot of pressure. There is no evidence that there has been any intelligence that has helped the U.S. from all these abuses. But there is very strong evidence to the contrary. For example, with Sheik al-Libi, the first person publicly acknowledged to have undergone the “enhanced interrogation techniques,” cracked and told the torturers what the torturer wanted to know, which was that Al Qaeda and Saddam Hussein were conspiring on WMDs. George Bush then quoted this in October 2003 to an expectant world, saying we’ve got evidence that they’re conspiring. We went to war, al-Libi, meanwhile recanted, saying that he only said that because he was being tortured.

CSS: No, they transmitted it pretty damn specifically. You can listen to every single soldier who comes up on charges. Everyone has the same defense—we were just following orders. You see it in those memos that were going up by our beloved attorney general. You look at those memos and they’re talking about using these “enhanced interrogation” methods which amount to torture. If you’re putting people in stress positions, why are you doing that unless it’s to abuse them? Inevitably, when people are told to do that, they go one step further. And then another step further. So, it’s all directly coming from the very top. You’ve got “Vietnam”—the famous iconic picture of the electric wires coming out of the guy in the hood and the sheet from Abu Ghraib. That is a technique called the “Vietnam,” and the reason it’s called it Vietnam is that we did it in Vietnam. These are not things these soldiers made up; they are well-known techniques.

MJ.com: Can you envision a more effective way to prevent terrorism?

CSS: On Septemeber 11th, in the aftermath of this ghastly tragedy, there were one or two people in the United States who asked the right questions. I remember Peter Jennings that night, or the night after, saying “Why are we hated? Why do we inspire so much hatred around the world?” Right after Septemeber 11th, we had an enormous reservoir of sympathy and goodwill, but we squandered all of that and inspired the entire world to hate us. They say that for every person in Guantanamo, there are 10 people out there who want to blow us up. That’s totally false. There are a thousand people out there who want to blow us up as a result of what we’ve done. The first thing you need to learn when you’re doing this is that, if you want people to treat you decently, you’ve got to treat them decently. There is always going to be an extremist of one stripe or another in the world, that’s inevitable. But, they’re not going to be a threat to you as long as the rest of the world likes you. Our administration takes the position that we don’t care if people like us as long as they fear us. It’s not like behaving decently is going to prevent any and all threat to us, but you’re going to get some more reliable intelligence, you’re going to have far more people who care to help you, and far fewer people who want to blow you up if you behave well rather than if you behave like George Bush.

MJ.com: Some people claim that open trials are impossible because a lot of the evidence was gathered in a way that they can’t bring it to court or would compromise security. Are these legitimate reasons?

CSS: No, that’s total nonsense. It’s the same tired excuse that’s been trotted out every time the government wanted to avoid a fair and open trial. Think about the Soviet Union. They wanted to blow us up. They sent spies to America to try and blow us up. And yet, when we captured one, we gave him a trial. And if we needed to do something that was secret, we had part of the trial without press there. In every single criminal case the prosecution doesn’t want to reveal their snitch because they want to use him again, or they don’t want us to know about them because we’d be able to show how unreliable they are.

MJ.com: How should we go about these trials?

CSS: The British government says we have a terrible time holding trials because we don’t have the tools to prosecute people because we’re not allowed to use phone taps. The Americans have wiretaps—why can’t the Americans do it? All of this is a total red herring. If they want to charge people and prosecute them for crimes they could do it. The problem is, that’s not what they’re doing. These guys haven’t committed any crimes. They’re trying to do minority report. They’re trying to say, “Well, these are Muslim people, who we don’t like and we think they might do something in the future, so we’re just going to hold them.”

MJ.com: Do you think any good can come of any of this?

CSS: The first thing good that will come out of Guantanamo Bay is that it’s going to force people to face up to what this land really is. Just like we hated black people and were never really willing to meet one back in the days of the Ku Klux Klan, today, we tend to hate Muslims and never even bother to understand what a Muslim really believes. There are so many misperceptions about Muslims. One of the positives of all this—and let’s face it, you have to be a pathetic optimist in this business—is that we’ll have to learn about Islam. History is a series of cycles, there’s extremes and unbelievable folly followed by people waking up to it. And the same will happen here. Again, the only question is how many individuals will suffer in the meantime.

MJ.com: Where do you expect your cases to go?

CSS: I don’t care about cases, I care about people. I want these people to be released and then what we need to do is begin by making amends for some of the terrible things we’ve done. We can’t expect to neutralize the hatred that the Bush administration has provoked around the world unless we admit to our mistakes. So, the first thing we need to do is admit to them and apologize for them. Then, I would love to think that American and Britain could get back on track to actually, honestly, helping purvey decency around the world. Now that may take a change of administration, but that’s what’s good for America, and that’s what’s good for the rest of the world. In the great scheme of things, I’m afraid, at least for the next 4 years, life will be kept busy trying to stave off the worst excesses of the Bush administration. But in the end, the tide will turn.

MJ.com: For those readers who have read the article and this interview and want to get involved, what do you suggest?

CSS: First thing—let’s get away from this notion that this is legal issue and that lawyers somehow have a monopoly on it. In terms of death penalty work, I’ll tell you the thing I thought was most powerful in all the years of work I’ve done was an organization called “Lifelines”, which was a bunch of ordinary people that wrote to prisoners on death row. It got to be where 5,000 people would write to men and women on death row and give them dignity and decency. It’s very much a reciprocal issue because they learn as much as they give. Readers can also contact another charity, www.reprieve.org.uk.

[As regards the war on terror detainees], the need for assistance is very broad. For example, the media—it’s very important to have the light of day shone on what’s going on down there. Also, in terms of mental health, we need Americans—it’s got to be Americans because they won’t let foreigners in—to get security clearances and volunteer as mental health experts. Also, if readers want to donate money so that we can do the job properly, they can contact me at clivessgb@aol.com, and/or the Center for Constitutional Rights in New York. And then they can give up whatever they’re doing and come work with us for a year.